The Oliver v. Stufflebeam case got me thinking about this little absurdity in Florida law: A spouse in an out-of-state same-sex marriage can legally marry a different person in Florida, so long as that different person is of the opposite sex. Why? Here are the steps to get us there:
1. The Florida bigamy statute requires that the defendant have a "husband or wife living." Section 826.01. So a person can't commit bigamy unless they presently have a husband or wife. So far so good.
2. Elsewhere, Florida law states that "Marriages between persons of the same sex entered into in any jurisdiction ... are not recognized for any purpose in this state." Section 741.212(1). Basically, Florida will pretend that your same-sex marriage doesn't exist.
3. If Florida won't recognize a same-sex marriage, it shouldn't recognize a same-sex "husband or wife" either. How, after all, could a person have a husband or wife if the person isn't married?
4. Thus, circling back to Step 1, the "husband or wife" element of the bigamy offense would be lacking in this circumstance.
Moral of the story: If you're a homosexual woman who's married to a woman in Iowa, you can legally marry a man in Florida. (Just don't leave Florida though; Iowa might try to prosecute you if you set foot there again). I might add that this also avoids the traditional "rational basis" underlying bigamy: That bigamy perpetuates patriarchies, which are bad for women and families.
Sadly, this issue isn't likely to get litigated. Either way, it does shed some light on the wrongness of Florida's position on same-sex marriage. And this comes on the heels of some high-up bigamy allegations in Florida.
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